STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06-1074

)

JERONE LEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on September 27, 2006.

APPEARANCES

For Petitioner: Jean Marie Middleton

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: David H. Freedman

Eric J. Grabois

David H. Freedman, P.A.

11900 Biscayne Boulevard, Suite 616 North Miami, Florida 33181

STATEMENT OF THE ISSUE

The issue is whether Petitioner has proved just cause for the termination of Respondent's employment as a teacher.

PRELIMINARY STATEMENT

By letter dated March 16, 2006, Petitioner informed Respondent that it had suspended him and initiated proceedings to dismiss him from all employment with the Miami-Dade County Public Schools, effective at the close of the workday on March 15, 2006. The letter states that Petitioner is taking

this action for just cause, including violation of School Board Rules 6Gx13-4A-1.21, 6Gx13-4A-1.213, 6Gx13-6A-1.112, and

6Gx13-1B-1.01.

By letter dated March 7, 2006, Respondent requested a formal hearing.

By Notice of Specific Charges filed May 10, 2006, Petitioner alleged, among other things, that the termination was due to Respondent's violation of School Board Rule

6Gx-13-1B-1.01 by allowing Mr. Wittey to enter his classroom without undergoing a background check and complying with the sign-in procedures.

At the hearing, Petitioner called five witnesses and offered into evidence 19 exhibits: Petitioner Exhibits 1-14 and 16-20. Respondent called one witness and offered into evidence one exhibit: Respondent Exhibit 1. All exhibits were admitted.

The court reporter filed the transcript on October 20, 2006. The parties filed their Proposed Recommended Orders on October 30, 2006.

FINDINGS OF FACT

1. Respondent has taught at Booker T. Washington High School for five years and has taught in Petitioner's school system for 26 years. He has been a fulltime industrial arts teacher since 1988. Prior to coming to Booker T. Washington High School, Respondent taught at Miami Edison High School. Respondent has never previously been disciplined during his long career as a teacher.

2. Article XXI, Section 1.B.1.a of the contract between Petitioner and United Teachers of Dade, which was in effect from 2003-06, authorizes Petitioner to suspend or dismiss any member of instructional staff for "charges . . . based upon Florida Statutes."

3. During the 2005-06 school year, Respondent's duties included classroom instruction, teacher education, and faculty administration. His instructional duties included teaching students computer skills in a computer lab. His administrative duties consisted of serving as the department head of the vocational education program at Booker T. Washington High School.

4. While at Miami Edison High School, Respondent had taught Corey Wittey, who was then a student at the school. Respondent had known Mr. Wittey since he had been in ninth grade when he was 15 or 16 years old. Based on a recent, chance

   encounter, while Mr. Wittey was moving furniture or equipment into Booker T. Washington High School, possibly while students were not present, Respondent had regained the acquaintance of Mr. Wittey, who was now in his early 30s.

5. In speaking with Mr. Wittey, Respondent learned that he had acquired a certificate of proficiency in computers, but he also learned of a life of unrealized goals. Respondent seemed ambivalent about whether he also learned of Mr. Wittey's criminal problems, but he did. Specifically, Respondent learned that Mr. Wittey had been arrested and was on probation for having sex with a minor. At one point, probably after

   Mr. Wittey had started working for Respondent, Respondent even bailed Mr. Wittey out of jail. (It is possible that this was in connection with the incident described below.)

6. Early in the 2005-06 school year, Respondent decided that he could use some help in discharging his responsibilities at school, and he knew that Mr. Wittey could use some help too. Respondent offered to pay Mr. Wittey if he would come to Respondent's office, which is adjacent to his classroom, and perform certain tasks, such as downloading software patches and updates onto Mr. Wittey's computers and performing certain nondiscretionary grading tasks. Respondent and Mr. Wittey worked out a fairly flexible arrangement under which Mr. Wittey

   could come to Respondent's classrooms and perform the work that Respondent assigned him.

7. Mr. Wittey came to Respondent's classrooms on Wednesdays and sometimes Fridays on at least 15 occasions. During those visits, Mr. Wittey did not have contact with Respondent's students, but, about one-fifth of the time, worked on computers in Respondent's office while Respondent was not present.

8. At no time when visiting the school did Mr. Wittey present himself to the security guard in order to obtain a visitor's pass. Respondent was aware of the procedure at Booker

   T. Washington High School, which required visitors to sign in, produce identification, and obtain a visitor's badge. Respondent claims that he told Mr. Wittey to inform security that Mr. Wittey was in the building, but he did not. The absence of a badge clearly revealed to Respondent repeatedly that Mr. Wittey never underwent the security procedure imposed on school visitors.

9. In fact, Mr. Wittey was properly classified as a volunteer, as he was a nonemployee of Petitioner performing services at the school on a regular basis and Petitioner was not paying him. Volunteers must be screened and must register, but Mr. Wittey never was screened and never registered. Nor had

   Respondent even informed the school principal of Mr. Wittey's repeated presence in the building.

10. In September 2005, agents of the Federal Bureau of Investigation raided Respondent's office and classroom and seized computers in connection with an investigation involving a missing female from St. Lucie County. Mr. Wittey was arrested in connection with this matter and his failure to register as a sex offender. The agents also questioned Respondent in connection with their investigation.

11. The Administrative Law Judge excluded hearsay evidence concerning what was found on the seized computers. It is also unnecessary to address the issue concerning whether Respondent's employment of Mr. Wittey may itself serve as a ground for termination, due to the findings and conclusions below.

12. Petitioner has just cause to terminate an employee who: 1) repeatedly assists a visitor or volunteer in bypassing the security procedures in place at the employee's school and

    2) recklessly disregards the security procedures by so assisting a visitor or volunteer who has a criminal history involving sex with a minor. After usurping security responsibilities that were not assigned to him, Respondent now tries to shield himself from accountability by claiming, after the FBI raid on the school, that he did not know aspects of Mr. Wittey's history and

    that he acted in good faith to help Mr. Wittey. The former claim is probably untrue, although the latter claim is probably true, but, regardless of the truth of these claims, the whole point of these school security procedures is to vest in security professionals, not individual teachers, the responsibility for regulating the presence of outsiders on the school campus.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat.(2006).

14. Section 1012.22(1)(f), Florida Statutes, (2006), authorizes Petitioner to suspend or terminate instructional employees. Section 1012.33(1)(a), Florida Statutes, (2006), requires that all contracts with instructional employees provide for termination for "just cause."1 "Just cause includes, but is not limited to, . . . misconduct in office "

15. Florida Administrative Code Rule 6B-4.009(3) defines "misconduct in office" as:

    Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

    6B-1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.

16. Florida Administrative Code Rule 6B-1.006(3)(a) requires a teacher to make "reasonable effort to protect the student from the student from conditions harmful to . . . the student's . . . safety."

17. As the statutory language suggests, the acts and omissions listed in the statute, such as "misconduct in office," are illustrative, not exhaustive, and other acts or omissions may also constitute "just cause." See Dietz v. Lee County School Board, 647 So. 2d 217 (Fla. 2d DCA 1994) (per curiam) (Blue, J., concurring).

18. Petitioner's Rule 6GX13-1B-1.01 states, in part:

    
    

    * * *

    
    

    . . . the safety and well being of our students is paramount in activities involving the public. Therefore, policies and guidelines have been set in place to ensure student and staff safety . . ..

    
    

    Miami-Dade County Public Schools' School Volunteer Program Policies and Guidelines are as follows:

    
    

    1. All volunteers must complete, sign, and date a Miami-Dade County Public Schools’ School Volunteer Program Registration Form before being placed in a school or beginning service as a school volunteer.

       
       

    2. A driver’s license or an appropriate photo identification card (ID) [passport, school ID, etc.,] must be provided at the time of registration.

    3. Upon registration, volunteers must wait until they receive notice from

       the school or work site to begin service.

       
       

    4. Any volunteer who registers must successfully complete the registration

       and background check process delineated in administrative policies annually approved by the Superintendent of Schools. If significant changes occur in the background check process, the School Board will

       be notified by the Office of Superintendent of Schools. Volunteers must report any criminal proceedings, including those which may occur after a background check, to school authorities immediately.

       
       

    5. Once approved, all volunteers must sign in and out at a designated location in the school before proceeding to their volunteer site. This is required for the purposes of liability and to know the location of a volunteer in case of an emergency.

       
       

    6. All volunteers must wear an identifying badge whenever volunteering.

       
       

    7. Volunteers are to always serve as positive role models. A school volunteer MUST ALWAYS:

       1. Use appropriate language;

       2. Discuss age-appropriate topics;

       3. Refrain from inappropriately touching students;

       4. Refrain from disciplining students (behaviors needing discipline must be referred to the appropriate teacher or staff member);

       5. Refrain from giving students gifts, rewards, or food items of any kind without the teacher’s permission.

          
          

    8. For liability reasons, volunteers must leave preschoolers or children not registered in the school, at home.

    9. Volunteers may not be left alone to supervise students. The visual and auditory presence of a Miami-Dade County Public Schools' employee must be maintained at all times.

       
       

       * * *

       
       

    10. Volunteers and staff members must adhere to School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and

        6Gx13-4-1.09, Employee Student Relationships.

        
        

        * * *

        
        

19. Petitioner must prove the material allegations by a preponderance of the evidence. Dileo v. School Board of Dade

    County, 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

20. Petitioner has proved just cause for the dismissal of Respondent. Reinforcing the importance of school security, Petitioner has adopted a rule that details the procedures for volunteers to enter its schools. One provision requires the disclosure of criminal proceedings. Respondent knew of

    Mr. Wittey's criminal background, but repeatedly elected not to require him to undergo the screening required of volunteers.

    Even if Mr. Wittey had been a visitor, not a volunteer, Respondent repeatedly allowed Mr. Wittey to work in close proximity to students without complying with the security procedures imposed on visitors. In either scenario, Respondent repeatedly violated his obligations concerning the safety of students and staff.

21. If Petitioner must prove that Respondent's acts and omissions violate the state rule defining "misconduct in office," it has done so. Respondent repeatedly disregarded his students' safety by allowing Mr. Wittey to enter Respondent's classroom over 15 times without undergoing security clearance. Respondent recklessly disregarded his students' safety because he knew that Mr. Wittey had a criminal history involving sex with a minor. Although no witness testified explicitly that Respondent's effectiveness as a teacher had been impaired by this incident, the facts sustain an inference to this effect, especially in a case in which the standard of proof is a preponderance of the evidence. When egregious misconduct occurs on school grounds, the impaired effectiveness of the teacher may be inferred. Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2d DCA 2000).

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order terminating Respondent's employment contract.

DONE AND ENTERED this 6th day of November, 2006, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2006.

ENDNOTE

1 Although the date of Respondent's conversion from hourly to fulltime status suggests that he holds a professional service contract, it is possible, as Respondent's proposed recommended order assumes, that he holds a continuing contract. If so, the proper statute is Section 1012.33(4)(c), Florida Statutes, which also provides for termination for "just cause," including "misconduct in office."

COPIES FURNISHED:

Dr. Rudolph F. Crew Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1394

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Jean Marie Middleton

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

David H. Freedman Eric J. Grabois

David H. Freedman, P.A.

11900 Biscayne Boulevard, Suite 616 North Miami, Florida 33181

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 06-001074

Orders for Case No: 06-001074